The Arms Trade Treaty, Day Three: Turning Up the Pressure on the U.S.

As the U.N. Arms Trade Treaty (ATT) conference moved through its third day, the isolation of the United States became ever clearer.

The U.S. position is that the current text of the treaty, negotiated last July, needs to be better drafted but should not be substantially changed. Yesterday, it became increasingly obvious that most nations disagree.

Discussion yesterday centered on the core of the treaty: the items it covers, the criteria it will apply to arms transfers, the way it will be implemented, and how it will come into force. A large number of nations argued that the current draft—which requires nations not to transfer arms “for the purpose” of facilitating genocide, war crimes, or crimes against humanity—is too weak. These nations want this “purpose” standard replaced with a “knowledge-based” standard, i.e., if you have knowledge (or should have had knowledge) that your arms will be used for this purpose, you should not export them.

This sounds reasonable, but it amounts to a standard that will be used to second-guess every U.S. export that someone believes has gone wrong on the grounds that the U.S. should have known better. But the U.S. has a very limited ability to foresee the future: It did not expect the genocide in Rwanda or the Arab Spring, for example.

In practice, therefore, a knowledge-based standard would endanger U.S. defense exports to all but the very purest nations, which is exactly what the holier-than-thou brigade (supplemented by covetous European defense firms) wants to accomplish. It will also lead to U.N. investigations of U.S. defense sales and demands for documents from and testimony by U.S. officials in order to establish how much “knowledge” they had or should have had.

The other demands brought forward yesterday were, if anything, worse. France spoke for several other nations demanding the inclusion of technology for the manufacturing of arms within the scope of the treaty, an impractical idea that would require the U.S. to control virtually every industrial process.

Many nations demanded that countries not only submit reports on their arms sales to a new international secretariat but that these reports be publicly available, an idea that—if it includes individual firearms owners—raises important privacy questions. Other nations want the power to amend the treaty by majority rule, which would raise serious sovereignty concerns for the U.S.

But in a way, the most damaging intervention came from the combination of Liberia, Trinidad and Tobago, and Russia. Liberia criticized every mention of national laws, every “where appropriate,” and every “where feasible” in the current treaty draft as “clawback clauses” that collectively weakened it. In reality, these clauses are there in large part to accommodate the U.S., its federal system, and the Second Amendment.

Trinidad and Tobago (speaking for the Caribbean Community) made the closely related point that implementation of the treaty at a national level only increases the importance of enforcing commonly agreed international standards. For its part, Russia demanded that the treaty place as many controls on the import of firearms as it does on exports.

None of this will necessarily find its way into the treaty now. But it points to an agenda for treaty amendments and for future pressure on the U.S., all of which will center on the argument that the treaty’s common standards should override the room the existing draft makes for the U.S. system and require tighter controls on imported firearms.

Finally, a number of autocracies, a few democracies, and even more treaty supporters on the outside want the treaty to be policed by an international court—either by the International Court of Justice, a group of so-called experts, or an entirely new organization. As Iran ridiculously asserted, the treaty favors arms exporters by allowing them to deny sales, while arms importers (which is what Iran would like to be) have no right of appeal against denied sales.

The Netherlands made the obvious, but often forgotten, objection that any mandatory arbitration system (indeed, any supranational oversight at all, I would add) would allow the dictatorships the right of appeal, which would amount to giving them the “right to buy” from unwilling sellers. If anything is unacceptable, it’s that.

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